"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Tuesday, November 22, 2011

A framework for evaluating the Taylor story

We have had a series of reports about potential voting irregularities in the past week. Part of the desideratum of those who oppose vigilance on fraud is that it can't happen and has never been proven. That view is wrong but one might point out that jumping all over reports of things that raise the appearance of impropriety and then arguing that impropriety never occurs is a little dicey.

So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.

This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.

But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.

This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.

Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.

Sec. 6.10(4) provides that:

The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month, or year, if one of the places is the residence of the person's parents, is the place of the parents' residence unless through registration or similar act the person elects to establish a residence elsewhere. If the person has no parents and if the person has not registered elsewhere, the person's residence shall be at the place that the person considered his or her residence in preference to any other for at least 28 consecutive days [formerly ten days] before an election. If this place is within the municipality, the person is entitled to all the privileges and subject to all the duties of other citizens having their residence there, including voting.* (Clarification added.)

Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.

More helpful, perhaps, is sec. 6.10(7) which provides that:

A guest at a national or a state soldiers' home in this state, a guest at a home for the aged supported by benevolence, or a patient of any county home or other charitable institution, resides in the municipality where the home is located and within the ward where the guest or patient sleeps, unless before becoming a guest or patient at the home the guest or patient elects to maintain his or her prior residence as his or her voting residence.

We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.

This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ... may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.

More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."

There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.

* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.

While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."

It was ten days and I am aware of the change. But I am not purporting to apply current law to prior acts. I am not concerned with the duration of residency but its definition of the manner of determining residency for a person who is in some sense transient. While duration might matter, we are a long way from having enough information to worry about that.

Actually I would have thought you'd be pleased that I have pointed out the complexity of determining the residency of a homeless person in a manner that is pretty favorable to the Taylors.

When Lena Taylor ran for the State Senate I did some research on her rental properties. Multiple code violations. Multiple evictions.

One noteworthy case involved asbestos. She e-mailed me to claim she never owned the property in question. I asked her about the deeds and related documents I had with her signature. Never heard anything more.

Is it a surprise that a property she owns is a voter drug-house? Of course not. Will she claim "charity," "homelessness," and the rest of the standard victim mantra? Of course. This is her milieu.

Your defense of Media Trackers is touching, but this outfit did much more than simply raise the issue. Media Trackers' "conservative media analyst" — that's the undeservedly hifalutin title conferred by Wisconsin Public Radio, which devoted an utterly pointless half an hour to him the other day — Brian Sikma reportedly told the Milwaukee Journal-Sentinel: "[Lena Taylor] was, in fact, an accessory to one felon voting on April 5."

And your good pal Charlie Sykes wrote: "Are [Democrats] all fine with Lena Taylor, a respected member of their party in the legislature, being an accessory to voter fraud?"

According to Freer v. Marshall & Ilsley Corp., 2004 WI App 201, "'imputation of certain crimes' to the plaintiff" raises a cause of action for defamation per se in Wisconsin.

And in fact there is a certain crime in Wisconsin that would fit Messrs. Sikma's and Sykes's accusation of "accessory to voter fraud," described in Wis. Stat. § 12.13(1)(h) (it contains the same language both pre- and post-WISGOP "reforms").

"We have had a series of reports about potential voting irregularities in the past week."

Interesting! I thought the excitement was about assertions of actual fraud, not potential irregularities.

"Part of the desideratum of those who oppose vigilance on fraud..."

Could you please list a few people who "oppose vigilance on fraud," and link to some passages in which their opposition to vigilance per se is made transparent?

"...is that it can't happen and has never been proven."

Well, if they hold the former view then the latter would surely follow. Any references to people who hold either view? I'm just a plain old competent reader of English, but my readings suggest that people actually think (and say) that there is no proof of serious levels of voter fraud; i.e., no evidence of fraud on a scale that would justify measures likely to suppress eligible voters. But I might be reading the wrong people.

I'd be particularly interested in evidence of commentators who moreover believe that voter fraud simply can't happen. That would be a pretty remarkable position to take. Arguments against those people would be super-easy to develop. Easier, perhaps, than arguing against people who actually exist.

I don't think Brian and Charlie require my defense. Any suggestion that there is either an action for defamation against either of them or the basis for a criminal charge is wildly off base given the nature of their remarks and appicable law.

As to persons claiming that fraud can't happen, that is generally the argument I face when it comes to photo ID. When I suggest that it would be virtually impossible to catch even a moderately careful person abusing former law to vote when he or she should not or where he or she should not or on multiple occasions, the response is unfailing that "no one would do that."

"Any suggestion that there is either an action for defamation against either [Brian or Charlie] or the basis for a criminal charge is wildly off base given the nature of their remarks and applicable law."

"When I suggest that it would be virtually impossible to catch even a moderately careful person abusing former law to vote when he or she should not or where he or she should not or on multiple occasions, the response is unfailing that 'no one would do that.' "

Conceivably someone could do that but the question is how many someones. So far the law, no matter how much certain people have tried, have not come up with many, certainly not enough to warrant the wide spread disenfranchisement that the current laws crafted by the GOP would incur.

I have not heard of anybody who has stepped up and said they couldn't vote because someone stole their identity and voted in their place.

And to justify the scale to which people's right to vote is being attacked, hundreds of cases of fraud would be required.

And please save us from the hack reply that cashing a check or renting from Blockbuster requires an ID. The Constitution does not guarantee the right to cash a check or rent a video.

But this is being kind because we all know the real reasons why these laws were enacted, and it's not to protect the vote. Don't piss on our collective legs and tells us it's raining.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.